Decisions – Miss.S.Ct. – Feb. 25, 2016

John A. Brown v. Collections, Inc. as Authorized Agent and Representative of Memorial Hospital at Gulfport –   jurisdiction of interloc. appeals – In 2008, Brown went to the ER at Gulfport Memorial complaining of severe pain and weakness on his left side. He was discharged with a diagnosis of a headache.  He was eventually diagnosed with a stroke.  When Gulfport sued for the  unpaid $45,000 bill, Brown argued the bill should be reduced because of the hospital’s negligence.   This defense was in an amended answer.  When the county court judge denied the amendment, she certified the judgment as final and appealable under Mississippi Rule of Civil Procedure 54(b)  “so the Mississippi Supreme Court may . . . address this issue, if Mr. Brown so chooses.” “But instead of seeking the intended review by the supreme court, Brown opted for a different route. He chose to file his appeal in circuit court, which affirmed the county court judgment and also entered a Rule 54(b) certification.”  The Miss.S.Ct. ends up dismissing the appeal because the interlocutory appeal should have been filed with the Miss.S.Ct. in the first instance and not the circuit court.

Dewayne Graham v. State –  constructive amendment of the indictment – Graham was convicted of kidnapping, forcible rape, and sexual battery of a woman he met and who accompanied him to his house after he offered her cocaine.  He was sentenced to 30 years as an habitual.  On appeal he argues that he was denied a speedy trial, that the evidence was insufficient and that an instruction constructively amended the indictment.   The indictment alleged that Graham had performed fellatio on the victim.  The jury was instructed that Graham  “did willfully, unlawfully and knowingly engage in sexual penetration, to wit: fellatio, with [the victim], a female person, without her consent, by putting his penis in her mouth.” The court finds that the amendment did not deny Graham a defense because his defense was consent – that the acts occurred but that they were consensual. “ecause the amendment did not alter the factual bases of the offense charged (sexual battery via penetration without consent) and because Graham’s overarching defense was one of consent, we hold that Jury Instruction S-3 did not constructively amend Count III of the indictment and that Graham was not prejudiced by the change.”

Dennis Kilpatrick v. White Hall on MS River, Inc. –  In 2007, five men got together and formed White Hall which purchased  2,300 acres in Claiborne County for a recreational hunting club. The price for the property was  $4,858,910.00.  The idea was  to raise  $2,000,000.00, through the solicitation of memberships in the Company with the remaining balance  through a loan from the seller,  Sustainable Forests, L.L.C. Each member of the Company being responsible for his respective share of the quarterly principal and interest on the note.

In 2010, White Hall claimed that Kilpatrick was not a member and prevented him from using the property.  Kilpatrick made a demand upon White Hall to review financial records pursuant to Miss. Code Ann. § 79-29-107 but was refused.  Kilptarick made payments totaling $189,000 but White Hall claims  $500,000.00 is the amount to acquire a membership interest in the Company. White Hall, though, has no written agreement specifying the amount required for membership. Kilpatrick sued. “After a trial, the chancellor found that Kilpatrick was not a member of White Hall, that he had come before a court of equity with unclean hands, and that he had no right to the return of his capital contributions.”  The Miss. S. Ct. affirms.

Austin Chaz Ramsey v. Auburn University and Kevin Yoxall –  venue – Austin Chaz Ramsey was attending Auburn on a full football scholarship. While working out in the school’s weight room, he  permanently injured his back.  He sued in Madison County naming the school and his conditioning coach as defendants.   At first, Ramsey asserted that he was a resident of Alabama.  He them tried to amend his complaint to say that he was a resident of Madison County. Both defendants filed motions to dismiss which were granted by the  circuit court which found that there were no facts creating venue in Madison County.  Ramsey appeals.  The Mississippi Supreme Court affirms.

Because Defendant Kevin Yoxall does not reside in Madison County, Mississippi, because Defendant Auburn University is not incorporated or situated in Madison County, Mississippi, and because Ramsey has not articulated that the defendants either committed a “substantial alleged act or omission” or that “a substantial event that caused the injury occurred” in Madison County, Mississippi, the trial court did not abuse its discretion in 12 finding that Madison County, Mississippi, was not the proper venue for Ramsey’s suit under Section 11-11-3(1)(a)(I).

In the Matter of the Conservatorship of Victoria Newsomerequirement of a final appealable order – This is the conservatorship that managed to send a chancellor to federal prison.  As a result of mismanagement of the Conservatorship, the Conservator, Marilyn Newsome,  filed several lawsuits.  The chancellor sus sponte severed them from the conservatorship case.  He “then purported to certify his order severing the claims as a Rule 54(b) judgment.”   Marilyn appealed  requesting that we reverse the chancellor’s order transferring her complaint from the conservatorship cause number into a separate cause number, but still within the chancery court.

After due consideration, we find that this appeal is not properly before this Court. The chancellor improperly certified the order severing the claims under Rule 54(b) because the order did not dispose of any substantive claims in general nor any substantive claims against a particular party. Instead, the order concerned a merely administrative matter from which there is no appeal as of right. We therefore conclude that the chancellor’s order fails to implicate an appealable judgment. Accordingly, we find that this appeal should be dismissed.

Dr. Willie Wilson v. Delbert Hosemannright to be placed on presidential primary ballot – Wilson is a businessman from Chicago who is running for president.  “The Party rejected Dr. Wilson’s petition {to be placed on the Democratic Party Presidential primary ballot for the March 8, 2016 election]  but later reconsidered and requested the Mississippi Secretary of State to place Dr. Wilson’s name on the primary ballot. But, because absentee and overseas military voting had already begun, the Secretary of State refused.”  The Miss. S. Ct. reverses.

John Christopher Blakeney v. Don McRee and Carolyn McReetermination of parental rights – Blakeney filed a pro se appeal from an order terminating his parental rights and allowing his children to be adopted by the McRees. Blakeney and his wife Wanda are incarcerated after having been found guilty of murdering Wanda’s biological grandparents (who were also her adoptive parents).  The murders occurred in 2006 and their two kids (who were 2 qnd 3 at the time) have been living with Carolyn McRee and her husband ever since.  (McRee is Wanda’s biological mom).  Apparently no court took seriously Blakeney’s ability to parent his children from the confines of MDOC and he loses.

Here, we recognize that the chancellor did not explicitlyfollow the procedure outlined in Section 93-17-7 in granting the McRees’ adoption petition. Nevertheless, considering the circumstances set forth in Sections 93-17-7 and 93-15-103, we find that clear and convincing evidence supports a finding that John is unfit to rear and train his children, and the chancellor did not err in granting the adoption.

 

 

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